I previously wrote about the B.C. Supreme Court decision in Hambleton (Litigation Guardian of) v. Hambleton 2021 BCSC 1155. In Hambleton, the Court refused to grant an order sought by a daughter that her mother attend a more extensive medical capacity evaluation. My previous post on the decision can be found here: https://www.bcestatelitigation.ca/case-comment/b-c-case-comment-alleged-victim-of-elder-abuse-not-forced-to-undergo-further-mental-capacity-assessment/

The daughter took the position that her mother suffered from severe dementia, and that she lacked capacity to make decisions regarding her financial affairs and was subject to undue influence by her other daughter. The mother retained her own lawyer and applied to strike the action which was brought in her name by her daughter (and to remove her daughter as litigation guardian).

The Court was satisfied that a less extensive assessment of the mother was adequate. It is an invasion of an individual’s rights to require them to undergo a mental capacity assessment, and the court should not make such an order without sufficient evidentiary basis for doing so. In this case, the mother had obtained an assessment to address the Court’s concern about capacity, and requiring her to undergo a further mental capacity assessment would not be appropriate.

The daughter appealed the result. The appeal has not yet been heard. However, pending the appeal the daughter applied for a stay of proceedings – an order that nothing happen in the underlying litigation until the appeal has been heard.

The Court of Appeal dismissed the application for a stay of proceeding.  The reasons can be found here: https://www.bccourts.ca/jdb-txt/ca/21/03/2021BCCA0377.htm.

The Court observed that the merits of appeal were “extremely low.” The order of the court below was a discretionary one, entitled to deference. It also would not bind the judge who ultimately would hear the application to remove the daughter as litigation guardian.

The Court also looked at irreparable harm and the balance of convenience. These factors favored the mother. She was currently a party to litigation that she wanted no part of, brought ostensibly on her behalf of by her daughter, who she does not want to represent her as litigation guardian. The mother’s personal autonomy was in the balance, and she was over 90 years old. To order a stay and keep the mother in the ligation until this issue was determined would cause her “much harm.”

This decision is another example of the courts protecting personal autonomy and the presumption of capability.